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Texas Court Erred in Dismissing Motion for Clarifying Order in Custody Case

A parent can seek enforcement of the custody provisions of a court order through contempt of court.  Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother.  The father moved for enforcement of possession or access to his child.  He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree.  In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt.  The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

The mother’s attorney had argued that the possession and access provisions of the divorce decree could not be enforced by contempt.  The attorney argued that conditions precedent had to be met before moving to the next phase and that “It’s not clear on its face. . .”  The appeals court found this statement to be ambiguous because “it” could refer either to the divorce decree or the motion.  The mother’s attorney, however, cited a case that suggested that the reference was to the divorce decree because the cause stated that a person can only be held in contempt for disobeying a court decree if the decree states how to comply “in clear, specific and unambiguous terms.” Exp parte Slavin.  The appeals court interpreted the mother’s argument as an argument that the divorce decree was not enforceable by contempt due to a lack of specificity.

Under Texas family law, a court may issue a clarifying order if it finds the order is not specific enough to be enforced by contempt.  The father complied with the procedures required for filing a motion for enforcement and a motion for clarification.  The trial court therefore should have held a hearing and issued a ruling on the merits of his request for clarification.

The trial court instead dismissed the father’s entire motion and ordered that there would be no hearing at the time.  The mother had not presented any grounds for dismissing the motion for clarification, and, in fact, the appeals court found her argument that the decree was “not clear” supported clarification.  The appeals court found “no valid basis” for the dismissal of the motion for clarification, and reversed that portion of the order.

If you are dealing with a child custody issue, an experienced Texas family law attorney can help.  Call the attorneys at McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.

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